U.S. v. Murray

Citation618 F.2d 892
Decision Date30 January 1980
Docket Number338-341,Nos. 326,D,s. 326
Parties5 Fed. R. Evid. Serv. 715 UNITED STATES of America, Plaintiff-Appellee, v. Dale MURRAY, Paul Leahey, Ronald Vanderbosch, Lawrence Tower, and Linton Sherlock, Defendants-Appellants. ockets 79-1177, 79-1207 and 79-1261-3.
CourtU.S. Court of Appeals — Second Circuit

John P. Maley, Burlington, Vt. (Sylvester & Maley, Burlington, Vt., of counsel), for defendant-appellant Murray.

Stephen S. Blodgett, Burlington, Vt. (Blodgett & McCarren, Burlington, Vt., McCarty & Rifkin, Brattleboro, Vt., Daniel S. Triggs, Milton, Vt., of counsel), for defendants-appellants Leahey, Vanderbosch and Tower.

Michael J. Whelton, East Hartford, Conn., for defendant-appellant Sherlock.

Karen McAndrew, Asst. U. S. Atty., Burlington, Vt. (William B. Gray, U. S. Atty., for the District of Vermont, Jerome F. O'Neill, Asst. U. S. Atty., Rutland, Vt., on brief), for plaintiff-appellee.

Before FEINBERG, MANSFIELD, Circuit Judges, and MISHLER, Chief District Judge. *

FEINBERG, Circuit Judge:

Dale Murray, Paul Leahey, Ronald Vanderbosch, Lawrence Tower and Linton Sherlock appeal from judgments entered after a thirteen-day jury trial before Albert W. Coffrin, J., in the United States District Court for the District of Vermont, convicting them of conspiracy to import and to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 846 and 963. Appellants make various claims of error with respect to the form of the indictment, the selection of the jury, the evidence and the verdict. For reasons given below, we find that appellants' arguments are without merit, and we affirm the judgment of the district court.

I. The Facts

The indictment, filed in August 1978, charged the five appellants and ten others 1 with one count of conspiracy to import and to distribute cocaine and marijuana from 1972 until 1978. Seven of the defendants pled guilty before or during the trial; one of the alleged conspirators remains a fugitive. 2 The trial commenced in January 1979 and on February 2, 1979, the jury returned a general verdict of guilty as to the seven remaining defendants; for sentencing purposes only, Judge Coffrin also submitted special interrogatories to the jury that required it to advise the court whether each defendant found guilty participated in the conspiracy knowing that it involved marijuana only, cocaine only, or both marijuana and cocaine. 3 The jury found that all appellants, with the exception of Linton Sherlock, were guilty of participating in the conspiracy with knowledge it involved marijuana as well as cocaine. 4

At trial, the government introduced evidence that allowed the jury reasonably to find the following: In the fall of 1972, Horst Lakits, one of the indicted conspirators, arrived in Connecticut and contacted Alan Pagano, who later testified for the government. Lakits had with him approximately three and one-half pounds of cocaine that he wanted to sell. After telling Lakits that he knew someone who might be interested, Pagano spoke with Albert Calamia, who also testified for the government. Shortly thereafter, Lakits sold a portion of the cocaine at a meeting attended by Peter Francis, another indicted conspirator, and by Pagano and Calamia, among others; Calamia acted as the "middleman" for the deal. In the summer of 1973, Lakits introduced Pagano and Calamia to his "business associate," appellant Dale Murray. At that time, Murray and Lakits "fronted" approximately 50 pounds of marijuana to Calamia and Pagano; Calamia sold approximately 25 to 30 pounds of that marijuana to Francis. Appellant Murray made a sale of cocaine to Pagano approximately six months later, and sold significant quantities of both marijuana and cocaine to Calamia during 1974-1975. Calamia in turn sold cocaine to other conspirators, including appellants Ronald Vanderbosch and Sherlock.

In late 1975 and early 1976, Calamia and appellants Murray, Vanderbosch and Lawrence Tower, in collaboration with other indicted conspirators, made an abortive attempt to smuggle three kilograms of cocaine into the United States from Colombia; appellant Paul Leahey contributed financially to this Colombian venture. In March 1976, Calamia and appellant Murray finally succeeded in smuggling the cocaine into this country. Calamia subsequently sold a total of 16 ounces of the cocaine to appellant Leahey, and varying amounts to other conspirators. Early in January 1977, Calamia began cooperating with the Drug Enforcement Administration (DEA), and he was the government's main witness at trial.

II. The Indictment

The single count indictment charged appellants with a conspiracy to import and to distribute cocaine and marijuana. Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. ("the Act"), conspiracy to import controlled substances and conspiracy to distribute such substances are made punishable by separate sections. Compare 21 U.S.C. § 963 (conspiracy to import) with 21 U.S.C. § 846 (conspiracy to distribute). Appellants contend that the indictment in this case therefore charged two separate offenses in the same count and was duplicitous, requiring dismissal of the indictment. See Fed.R.Crim.P. 8(a) (requiring that there be "a separate count for each offense" charged in the indictment); 8 Moore's Federal Practice P 8.03, at 8-6 (2d ed. 1979) (discussing duplicity).

Important policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether the jury found defendant guilty of only one crime and not the other, or guilty of both. See Gerberding v. United States, 471 F.2d 55, 59 (8th Cir. 1973). Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached an unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant's rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a subsequent prosecution. See United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); cf. United States v. Gipson, 553 F.2d 453, 456-59 (5th Cir. 1977); see generally Comment, United States v. Gipson : Duplicity Denies Right to Unanimous Verdict, 1978 Det.C.L.Rev. 319; 8 Moore, supra, at 8-6 to -7. On the other hand, the allegation in a single count of the commission of a crime by several means should be distinguished from the allegation of several offenses in the same count. Although drawing the line between these two concepts may be difficult in practice, in theory the latter type of allegation is duplicitous, while the former is not. See United States v. Viserto, 596 F.2d 531, 538-39 (2d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 80, 62 L.Ed.2d 52 (1979); United States v. UCO Oil Co., supra, 546 F.2d at 835-38; United States v. Tanner, 471 F.2d 128, 138-39 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v. Lennon, 246 F.2d 24, 27 & n.4 (2d Cir.), cert. denied, 355 U.S. 836, 78 S.Ct. 60, 2 L.Ed.2d 48 (1957).

The application of these doctrines to conspiracy indictments poses unique issues, for a single agreement may encompass multiple illegal objects. However, it is well established that "(t)he allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for 'The conspiracy is the crime and that is one, however diverse its objects.' " Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942) (quoting Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561 (1919)). Braverman itself is not necessarily dispositive of the question raised by appellants here, however, because the Court stressed that the conspiracy charged in that case violated "but a single statute," and hence only a single penalty could be imposed on the conspirators. Braverman v. United States, supra, 317 U.S. at 54, 63 S.Ct. at 102. Here, in contrast, the conspiracy alleged violated two statutory sections, 21 U.S.C. §§ 846 and 963. Arguably, it was Congress' intent to punish a conspiracy to import and to distribute controlled substances twice as severely as a conspiracy to do either alone. Cf. Sanabria v. United States, 437 U.S. 54, 74 n.33, 98 S.Ct. 2170, 2184, 57 L.Ed.2d 43 (1978); American Tobacco Co. v. United States, 328 U.S. 781, 787-88, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946). Appellants argue that if Congress in fact intended to make conspiracy to import and conspiracy to distribute separately punishable crimes, then it would be duplicitous to allege violations of §§ 846 and 963 in a single count. Cf. United States v. Orzechowski, 547 F.2d 978, 986-87 (7th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977).

The issues thus posed have been raised more frequently in the context of a claim of multiplicity, i. e., that the same offense is charged in separate counts, thereby impermissibly punishing a defendant twice for the same conduct. The circuits are in conflict over whether Congress intended to multiply punishments for participation in a single conspiracy embracing both importation and distribution. Three circuit courts have held that it is not multiplicitous to allege violations of 21 U.S.C. §§ 846 and 963 in separate counts, on the ground that Congress regarded conspiracy to import and conspiracy to distribute not only as separate offenses, but as offenses "so compounding each other" that successive sentences could be imposed for participation in a conspiracy involving both objects. See United States v. Garner, 574 F.2d 1141, 1146-47 (4th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 337, 58 L.Ed.2d 333 (1978)...

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